ROUMANN CONSULTING, INC., and RONALD ROUSSE v. Symbiont Construction, Inc.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 23, 2024
Decided June 26, 2024
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-2874
ROUMANN CONSULTING, INC., and
RONALD ROUSSE,
Plaintiffs-Appellants,
v.
SYMBIONT CONSTRUCTION, INC., et
al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 18-C-1551
Lynn Adelman,
Judge.
O R D E R
Ronald Rousse and Roumann Consulting, Inc., appeal from the entry of adverse
decisions in their second lawsuit against Symbiont Construction, Inc., several of its
officers and owners, and two related companies (collectively, “Symbiont”). The district
court granted in part Symbiont’s motion to dismiss, finding that most of Rousse and
Roumann Consulting’s claims were barred by the rule against claim splitting. Later, the
court entered summary judgment for Symbiont on all of the remaining claims. We
affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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I.
We recount the facts, and the reasonable inferences to be drawn from those facts,
in the light most favorable to Rousse and Roumann Consulting. Indianapolis Airport
Auth. v. Travelers Prop. Cas. Co. of Am., 849 F.3d 355, 361 (7th Cir. 2017).1
A.
Ronald Rousse has worked in the construction industry for decades. He
specializes in light commercial construction projects for “big box” retailers. Rousse is
particularly adept at bidding on and managing construction projects for these large
retailers that want “branded structures”—buildings that look essentially the same no
matter where they are located. Over time, Rousse built a database to track bidding
information about the subcontractors he used for these branded structures, including
their names, experience levels, qualifications, and bidding and pricing practices.
Because of Rousse’s expertise, he was hired in December 2011 by T.V. John &
Son, Inc., a construction company, as its Vice President of Estimating, Project Controls
and Major Projects. Rousse was paid an annual salary and earned a 30% commission on
any new business he brought in. Rousse’s primary job responsibilities included
estimating the cost of, and bidding on, projects for big box retailers like Menards,
Kroger, and Fresh Market.
While employed by T.V. John & Son, Rousse continued building his
subcontractor database. He included all the information about the big box projects he
worked on as a T.V. John & Son employee. The database eventually ballooned into
“hundreds of thousands of specific datapoints” that Rousse used to predict quickly and
accurately how much a new project would cost T.V. John & Son before it submitted a
bid. Rousse did not share his database with anyone. Instead, he used the database
personally to create bidding packages for T.V. John & Son.
1 One caveat. At oral argument, the appellants’ counsel raised for the first time several new factual
assertions that lack any support in the record. For example, counsel asserted repeatedly that Rousse is an
“engineer” or a “geo-engineer” who performs “engineering evaluation of trusses”; counsel insisted that
we can find support for that assertion at “DN 109.” (Oral Argument at 1:04–06, 3:25, 9:23–33). Docket 109
is a twenty-six-page declaration accompanied by 950 pages of exhibits. The Court was unable to locate
any reference to Rousse being an engineer, let alone that he performed engineering evaluations of trusses.
We will disregard any assertions or arguments made for the first time at oral argument. See, e.g.,
Argyropoulos v. City of Alton, 539 F.3d 724, 739–40 (7th Cir. 2008).

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No. 22-2874 Page 3
In 2015, Symbiont acquired T.V. John & Son.2 Symbiont then negotiated with
Rousse to become an independent contractor. Rousse created Roumann Consulting and
signed an Independent Contractor Agreement with Symbiont. As an independent
contractor, Roumann Consulting performed essentially the same role for Symbiont that
Rousse had previously performed as an employee for T.V. John & Son.
The confidentiality clause of the Independent Contractor Agreement, § 8.1(a),
provided that the parties would not use or disclose the other party’s confidential
information “except to the extent necessary to perform” under the contract. The term
“confidential information” was defined as:
[T]he Disclosing Party’s information that is proprietary or confidential in
nature or confidential or proprietary information that is licensed to the
Disclosing Party and includes, but is not limited to, the Disclosing Party’s
manner and method of conducting business, customer proposals, concepts,
ideas, plans, methods, market information, technical information and the
Disclosing Party’s client, prospective client and contact lists.
After the agreement was finalized, Rousse shared significant portions of his
database with Symbiont and its employees. Rousse’s database was also added to
Symbiont’s centralized computer software program, Procore, which automates various
aspects of Symbiont’s processes of tracking and bidding on construction projects.
Rousse also continued to build out his database using information learned as
Symbiont’s independent contractor. Rousse contends that nearly all of the data
contained in Procore—which Symbiont continues to use—comes from his confidential
information.
On August 21, 2017, Symbiont sent a letter to Rousse notifying him that
Symbiont was terminating the Independent Contractor Agreement, effective September
20, 2017. In the termination letter, Symbiont confirmed that Rousse would receive his
owed commissions for the next two years. On September 22, 2017, Symbiont made its
first (and, as it turned out, only) commission payment to Rousse.
B.
Rousse turned to federal court—twice. In the first suit, Roumann I, which is
ongoing, Rousse alleges that Symbiont breached its contract with Roumann Consulting
by failing to pay commissions to Rousse. See Roumann Consulting, Inc. v. T.V. John & Son,
2 For purposes of this appeal there is no relevant difference between “Symbiont” and “T.V. John & Son,”
so from here on we refer to both as “Symbiont” for clarity.

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No. 22-2874 Page 4
Inc., No. 17-C-1407, 2019 WL 3501513, at *1 (E.D. Wis. Aug. 1, 2019). Symbiont
counterclaimed, alleging that it did not owe Rousse anything because Symbiont
terminated Rousse for “willful misconduct.” During the discovery process in Roumann
I, however, several Symbiont officers admitted that the company had not fired Rousse
for “willful misconduct.” Given that evidence, on August 1, 2019, the district court
entered summary judgment for Rousse on Symbiont’s counterclaim. Id. at *6.3
After the district court denied Rousse’s motion for leave to file a second
amended complaint in Roumann I, Rousse brought the lawsuit underlying this appeal.
In Roumann II, Rousse brought a thirteen-count complaint that mostly duplicated the
complaint in Roumann I. In ruling on the defendants’ motion to dismiss, the district
court dismissed all but two of these redundant counts based on the rule against claim
splitting.
Only one of the dismissed counts is relevant to this appeal. In Count VI of the
Roumann II complaint, Rousse alleged that Symbiont conspired to injure his business,
Roumann Consulting, by “making false promises of [commission] payment[s]” in the
Independent Contractor Agreement, in violation of W IS . S TAT. § 134.01. According to
Rousse, the object of Symbiont’s alleged conspiracy was twofold: “to steal Mr. Rousse
and Roumann Consulting’s Customers and Confidential Information” and “to force Mr.
Rousse and Roumann Consulting to accept a payment that is less than is otherwise
owed under the Independent Contractor Agreement.”
In the two counts that survived dismissal, Rousse alleged that Symbiont was
continuing to breach the Independent Contractor Agreement by using Rousse’s
confidential information to obtain new construction projects.
Following discovery, Symbiont moved for summary judgment on these two
remaining counts. The court entered summary judgment for Symbiont, finding that
none of the information that Rousse and Roumann Consulting obtained as Symbiont’s
employee or agent was “confidential” within the meaning of the parties’ Independent
Contractor Agreement. The district court also noted that Rousse failed to provide any
evidence that Symbiont had used any data Rousse obtained before he began working
for Symbiont. This appeal followed.
3 Roumann I is currently scheduled for trial on August 19, 2024.

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II.
A.
On appeal, Rousse and Roumann Consulting first contest the district court’s
decision to dismiss the injury-to-business claim under the rule against claim splitting.
We review for an abuse of discretion. Scholz v. United States, 18 F.4th 941, 951 (7th Cir.
2021).
The rule against claim splitting generally requires plaintiffs to bring every theory
for relief arising from “the same transaction or events” in a single lawsuit. Carr v. Tillery,
591 F.3d 909, 913 (7th Cir. 2010). In that sense, the rule is an aspect of the doctrine of
claim preclusion (in Latin, res judicata). Rexing Quality Eggs v. Rembrandt Enters., Inc., 953
F.3d 998, 1002 (7th Cir. 2020). That’s why our caselaw on claim splitting “draw[s] on
principles of claim preclusion,” except that we may apply the rule against claim
splitting even if there is no final judgment on the merits. Scholz, 18 F.4th at 952 (citing
Katz v. Gerardi, 655 F.3d 1212, 1218 (10th Cir. 2011)).
This rule applies if, first, both lawsuits involve the same parties or those in
privity with the parties, and second, the lawsuits arise from the same “cause of
action”—in other words, the two suits “are based on the same, or nearly the same,
factual allegations.” Scholz, 18 F.4th at 952 (citation omitted). Like the district court, we
also conclude that both elements are met here.
First, both Roumann I and Roumann II involve the same parties. The plaintiffs are
identical in both suits. The defendants in Roumann II differ from those in Roumann I, but
the differences are immaterial. As the district court found, the defendants in both cases
are all in privity. The complaint in Roumann II alleges that T.V. John & Son (the
defendant in Roumann I) and Symbiont Construction Inc. (the defendant in Roumann II)
are the same legal entity. The complaint further alleges that the Symbiont entities are all
“a single company” whose separate corporate forms should be disregarded. In other
words, the only asserted basis for liability against the Symbiont entities is that they are a
single successor entity to T.V. John & Son, which also means that they are in privity
with T.V. John & Son. See Supporters to Oppose Pollution, Inc. v. Heritage Grp., 973 F.2d
1320, 1327 (7th Cir. 1992); Robinson v. Volkswagenwerk AG, 56 F.3d 1268, 1275 (10th Cir.
1995). The individual defendants named in Roumann II are all Symbiont officers and
shareholders, meaning that they also are all in privity with T.V. John & Son. Horwitz v.
Alloy Auto. Co., 992 F.2d 100, 103 (7th Cir. 1993). In addition, Rousse does not challenge
the court’s privity determination. Therefore, any argument that the court erred in
making this determination is waived. Tuduj v. Newbold, 958 F.3d 576, 579–80 (7th Cir.
2020).

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No. 22-2874 Page 6
Looking to the second criterion, both Roumann I and Roumann II arise from the
same cause of action. In both lawsuits, Rousse and Roumann Consulting sued Symbiont
for firing Rousse and failing to pay him commissions he was owed. Rousse resists this
conclusion by arguing that his injury-to-business theory in Roumann II is new. But that’s
irrelevant. The rule against claim splitting is unconcerned with legal theories. It asks
instead whether the plaintiff’s claim arises from the same set of operative facts. Scholz,
18 F.4th at 952. Because the same set of operative facts forms the basis for Rousse’s new,
alternative breach of contract theory, the rule against claim splitting applies.
In his reply brief, Rousse argues for the first time that his injury-to-business
claim is based on a different set of operative facts—namely, Symbiont’s decision to file a
false counterclaim in Roumann I. Not only is this argument waived, e.g., Mendez v. Perla
Dental, 646 F.3d 420, 423–24 (7th Cir. 2011), it is baseless. The complaint in this case
clearly asserts that the injury-to-business claim is based on Symbiont’s improper firing
of Rousse and failure to pay his commissions—precisely the same basic facts behind
Roumann I. The word “counterclaim” is nowhere in Rousse’s fifty-one-page, 217-
paragraph complaint. Reasonable mistakes about the record are understandable, but it
does neither counsel nor his client any good for counsel to assert that allegations exist
when they do not.
B.
Rousse next challenges the entry of summary judgment on his breach of contract
claim. We take a fresh look at summary judgment decisions. E.g., EEOC v. Wal-Mart
Stores E., L.P., 46 F.4th 587, 593 (7th Cir. 2022). Recall that Rousse claimed that Symbiont
breached the parties’ agreement by using Rousse and Roumann Consulting’s
confidential information to acquire new business. On appeal, Rousse asserts that the
district court erred by concluding that his bidding data was both known to, and equally
owned by, Symbiont, such that this data was not “confidential” within the meaning of
the Independent Contractor Agreement. Rousse asserts that the parties’ agreement
designates all “confidential information” as Rousse’s information and that assembling
appropriate bidding data for Symbiont was not part of his job. We disagree.
The Independent Contractor Agreement defines confidential information as
“information that is proprietary or confidential in nature.” Thus, for Rousse’s
information to have fallen within this definition, the data must have belonged solely to
Rousse and could not have been independently known by Symbiont.
Rousse’s database, insofar as it is made up of information accumulated between
December 2011 and August 2017, fails both requirements. First, the information was at
least equally owned by Symbiont because it was acquired either during the scope of

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Rousse’s employment or through Roumann Consulting’s agency relationship with
Symbiont. “If an employee collects or develops [valuable business information] as part
of the assigned duties of the employment, the information is owned by the employer.”
R ESTATEMENT (THIRD) OF U NFAIR C OMPETITION § 42 cmt. e (A M . L. I NST. 1995); see also
Chuck Wagon Catering, Inc. v. Raduege, 277 N.W.2d 787, 792 (Wis. 1979) (noting that
valuable business assets developed during an employee’s employment generally belong
to the company, not the employee). Rousse’s job for Symbiont (individually and later
through Roumann Consulting) consisted of bidding on construction projects; without
the data he collected after he was hired, Rousse could not have effectively performed
his job.4 Moreover, Roumann Consulting accumulated the purported “confidential”
bidding data while Rousse was acting as Symbiont’s agent and within the scope of that
independent contractor relationship. Therefore, the subcontractor and bidding data that
Rousse acquired, as part of his duties for Symbiont between December 2011 and August
2017, belonged (at least) equally to Symbiont.
Second, it is well-established that “an employee’s knowledge of a matter within
the scope of his duties is imputed to the employer.” Prime Eagle Grp. Ltd. v. Steel
Dynamics, Inc., 614 F.3d 375, 379 (7th Cir. 2010). Indeed, a “fundamental rule of agency
law is that corporations ‘know’ what their employees know … about subjects that are
within the scope of their duties.” Id. at 378. Because Rousse and Roumann Consulting
collected the bidding data during the scope of their work, Symbiont knew whatever
Rousse and Roumann Consulting knew about those specific projects. See id. Relatedly,
Symbiont had access to all of this information through its own bidding and
subcontractor documents, so Symbiont could not have violated the confidentiality
agreement with Rousse and Roumann Consulting by using information that it already
knew from other sources. BondPro Corp. v. Siemens Power Generation, Inc., 463 F.3d 702,
709 (7th Cir. 2006).
Like the district court, we are willing to assume that the data that Rousse
assembled before he became Symbiont’s employee was protected “confidential
information.” On appeal, though, Rousse adopts an all-or-nothing approach. Rousse
never argues that he is entitled to a trial about the extent to which Symbiont is using
pre-December 2011 data. Nor has Rousse pointed us to any evidence that Symbiont was
using pre-December 2011 data after his termination, even though the district court
explicitly pointed to this issue in its decision. We will not “scour the record in search of
4 There’s a good argument that the information was exclusively owned by Symbiont, see United States v.
O’Hagan, 521 U.S. 642, 654 (1997); Carpenter v. United States, 484 U.S. 19, 26 (1987), but we need not resolve
that point.

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No. 22-2874 Page 8
evidence” to which we have not been directed, Jaworski v. Master Hand Contractors, Inc.,
882 F.3d 686, 691 (7th Cir. 2018) (citation omitted), and failing to address the district
court’s reasoning generally assures failure on appeal, Allen-Noll v. Madison Area Tech.
Coll., 969 F.3d 343, 351 (7th Cir. 2020).
We have considered Rousse’s other arguments, but none merit discussion. For
the foregoing reasons, we AFFIRM the decisions of the district court.

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